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No. 95-4216

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United States of America, *

*

Appellee, *

*

v. *

*

Barry Keith Wilson, *

*

Appellant. *

Appeals from the United States

District Court for the

Eastern District of Missouri.

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No. 95-4217

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United States of America, *

*

Appellee, *

*

v. *

*

Frederick Fernando McGee, *

*

Appellant. *

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 Submitted: May 14, 1996

 Filed: January 2, 1997

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Before MORRIS SHEPPARD ARNOLD, Circuit Judge, and HEANEY and HENLEY,

Senior Circuit Judges.

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HENLEY, Senior Circuit Judge.

Barry Keith Wilson and Frederick Fernando McGee were convicted of

conspiracy to possess cocaine base with intent to distribute in violation

of 21 U.S.C. § 846. McGee was also convicted of assault
 The Honorable Edward L. Filippine, United States Senior

1

District Judge for the Eastern District of Missouri.

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on a federal officer with a deadly weapon under 18 U.S.C. § 111. Wilson

and McGee have filed separate briefs on appeal and raise several separate

issues. After consideration of each claim raised, we affirm the judgment

of the district court as to each defendant.1

BACKGROUND

On March 8, 1995, two DEA agents on drug interdiction patrol at St.

Louis' Lambert Airport observed two persons later identified as Wilson and

McGee standing in line at an airport ticket counter. The two men appeared

nervous and were looking around. The agents noticed that McGee had braided

hair and a gold tooth. The agents saw Wilson count out cash and hand it

to the ticket agent and also saw McGee write something on a piece of paper

and hand it to the ticket agent.

After McGee and Wilson left the ticket counter, the DEA agents

questioned the ticket agent and learned that Wilson and McGee had paid in

cash for a round trip ticket for the next day from Phoenix to St. Louis in

the name of Laura Dugan. The piece of paper McGee handed to the ticket

agent gave the name Freddie Lakes as the name of the purchaser of the

ticket. 

Because they were suspicious that in the circumstances this cash

purchase of a plane ticket suggested a drug transaction, the next day drug

task force agents waited at the gate where Dugan's plane was to arrive.

They observed her as she deplaned and walked to the baggage area. They

noted that she was looking around and appeared nervous.

As she left the terminal, one of the agents approached Dugan and

identified himself. He questioned her and then asked if she would agree

to be searched. Dugan agreed and a search of her
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person revealed a package containing approximately half a kilogram of

cocaine taped to her waist under her clothing. Dugan agreed to cooperate

and gave a statement about her trip to St. Louis.

She stated that her real name was not Laura Dugan but Kirsten Mactas

and that she was delivering the drugs for a man named Big John. Later it

was learned that her real name was not Kirsten Mactas but Tara DeatschWright. Deatsch-Wright stated that she was to deliver the cocaine to a man

she didn't know but whose name was Fred and who would have his hair in

braids and a gold tooth. She was to meet Fred at the Hampton Inn Hotel

near the airport. 

Deatsch-Wright agreed to assist the officers by making a controlled

delivery of the cocaine at the hotel. Officers on stakeout at the hotel

observed Wilson and McGee arrive in a van. They then saw Wilson take the

suitcase containing the cocaine. As the officers moved in both McGee and

Wilson attempted to flee but Wilson was apprehended. McGee, however, drove

off in the van, running over the foot of a DEA agent in the process. McGee

was apprehended some days later.

Wilson was convicted and sentenced to 151 months in prison for

conspiracy to possess crack cocaine with intent to distribute. McGee was

convicted of that charge and also of assault on a federal officer with a

deadly weapon (for running over the officer's foot with the van in his

attempt to flee) and was sentenced to 276 months in prison.

BARRY WILSON

Wilson's defense theory at trial was that he was merely a friend and

companion of McGee who happened to be in the wrong place at the wrong time.

He contended that he knew McGee primarily from their performances together

in a rap music group. Wilson argued that he had loaned money to various

people before and that he had agreed to loan McGee the money necessary to

buy a plane ticket for a woman McGee described as his girlfriend. 

Wilson attempted to show that he accompanied McGee on the trip to the

airport to purchase the ticket because he wanted to make sure the loan

actually went toward the plane ticket. Wilson also contended that he
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accompanied McGee to the Hampton Inn Hotel because McGee invited him to go

along to pick up his girlfriend.

Wilson insisted that he knew nothing of any involvement by McGee in

drug trafficking and that he had no idea that the woman described as

McGee's girlfriend was actually delivering drugs. Thus, he argued that his

presence at the airport and the hotel was purely innocent. He also argued

that he had no knowledge that the suitcase brought to the hotel by DeatschWright contained drugs and that he had no intent to possess or distribute

any drugs. 

Despite the testimony elicited by Wilson in support of this theory

of the case, the jury found him guilty of conspiracy to possess cocaine

base with intent to distribute.

Wilson raises three issues on appeal. First, he argues that the

trial court erred in refusing to allow him to call a defense witness who

he alleges would have corroborated a portion of his defense. Second, he

contends that the evidence was insufficient as a matter of law to establish

a conspiracy. Third, Wilson contends that the trial court erred in

sentencing him under the enhanced penalties applicable to cocaine base

(crack cocaine). He argues that the evidence was insufficient to establish

that the cocaine seized was cocaine base.

Trial Court Ruling on Admissibility of Proffered Defense Testimony.

At trial Wilson did not testify and put on no witnesses in his own

defense. Wilson's attorney did, however, examine eight witnesses produced

by co-defendant McGee. All of these witnesses offered testimony in support

of Wilson's reputation and character;
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for example, that they had no knowledge that Wilson was ever involved in

any illegal drug activity. This and other testimony from these witnesses

could be viewed as supporting Wilson's defense theory. 

On the last day of testimony in the week long trial, Wilson moved to

introduce in support of his defense the testimony of one Al Jones.

Wilson's attorney stated in a proffer of proof that Jones would testify

that "Barry [Wilson] told him . . . that Barry was going to be heading out

to the airport to pick up somebody's girlfriend." Wilson contended that

this testimony by Jones would have tended to corroborate his version of

events, i.e., that he was making the trip to pick up a person he believed

was McGee's girlfriend, not accompanying McGee to accept delivery of

illegal drugs.

The government raised two objections to this proposed testimony.

First, the government contended that the introduction of testimony from

Jones would violate an order requiring sequestration of all witnesses which

was entered at the beginning of the trial. Both sides had agreed - and the

court had ordered - that witnesses should be sequestered, i.e., no witness

could attend sessions of court and listen to the testimony of other

witnesses. Because counsel for Wilson had not intended to call Jones he

had not been barred from the courtroom and had, in fact, attended

unspecified portions of the proceedings during the first three days of the

trial. The government argued that it would violate this order and unfairly

advantage the defendant to call as a last minute witness a person who had

sat through the proceedings and listened to the testimony of other

witnesses for the government and defense.

The government also objected that this proposed testimony was

inadmissible as hearsay, i.e., Jones would testify about something he had

heard Wilson say outside the courtroom. The government noted that Wilson's

counsel had stated in his opening argument that
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Wilson would testify in his own behalf and had outlined the nature of that

testimony. However, the government said, it appeared that Wilson had later

decided not to testify but to use Jones as a means of testifying indirectly

without subjecting himself to cross-examination. 

Counsel for Wilson contended: (1) he had no intent to subvert the

sequestration order and had just learned late the night before that Jones

might have relevant information; and (2) the proposed testimony of Jones

should be admitted under the exception to the hearsay rule for statements

of the declarant's then existing state of mind.

The trial court considered at some length on the record the arguments

of counsel on the proposed testimony of Jones and then ruled that the

testimony was inadmissible both because Jones had not been sequestered and

because his testimony would be inadmissible hearsay. The trial court also

noted that to the extent Jones would be asked to testify about Wilson's

reputation for good character and lack of involvement in drug activities

such testimony would be merely cumulative to the testimony elicited from

other witnesses by Wilson's counsel.

Wilson now contends that the exclusion of Jones' testimony was

reversible error. He argues again that Jones' testimony was admissible

under the exception to the hearsay rule for evidence of the declarant's

then existing state of mind. He also argues that Jones' testimony would

not have violated the intent behind the sequestration order because counsel

simply hadn't known that Jones had relevant evidence to offer. Wilson

further contends that he was prejudiced by the trial court's ruling because

Jones was the only witness who could have testified to the specific fact

that when Wilson went with McGee to pick up Deatsch-Wright he had described

it as going to the airport to pick up McGee's girlfriend.
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It is, of course, axiomatic that we give great deference to the

rulings of the trial court on evidentiary matters such as the admissibility

of proffered testimony. United States v. Logan, 49 F.3d 352, 358 (8th Cir.

1995). We will overturn such rulings of the trial court only for abuse of

discretion. See, e.g., United States v. Delpit, 94 F.3d 1134, 1146 (8th

Cir. 1996). 

In this case, we believe that the trial court neither abused its

discretion nor prejudiced the defendant by its ruling. The statement by

Jones about what defendant Wilson had told him was clearly hearsay, an outof-court statement by a declarant whose reliability could not be tested as

to the truth of the matter asserted in the statement. See F. R. Evid. 801.

While it might be possible that the proffered statement could have been

characterized as a statement by the defendant reflecting his then existing

state of mind, see F. R. Evid. 803(3), we find no abuse of discretion in

the trial court's ruling. See, e.g., United States v. Worley, 88 F.3d 644,

646 (8th Cir. 1996).

In addition, the trial court clearly acted within its discretion in

concluding that Jones could not be called to testify at the last minute

after sitting in the courtroom and listening to much of the case. The

parties had agreed pursuant to Federal Rule of Evidence 615 to an order

requiring the sequestration of witnesses. Given this order, the court did

not believe it would be fair to allow Jones to hear the testimony of other

witnesses and then possibly tailor his own testimony accordingly. See,

e.g., United States v. Shurn, 849 F.2d 1090, 1094 (8th Cir. 1988). Such

a decision is committed to the sound discretion of the trial court. United

States v. Kindle, 925 F.2d 272, 276 (8th Cir. 1991).

In any event, we do not believe Wilson was prejudiced by the trial

court's ruling. Wilson's trial counsel brought out through his questioning

of eight other witnesses the contention that Wilson was unaware of, and not

involved in, any drug activity. As the
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trial court noted, Jones' testimony would merely have been cumulative to

this other evidence. Logan, 49 F.3d at 358. The jury considered Wilson's

version of events but apparently rejected it as unpersuasive and

accordingly convicted. We do not find any reversible error in the trial

court's ruling to exclude the Jones testimony.

Sufficiency of the Evidence.

Wilson also contends on appeal that the evidence was insufficient as

a matter of law to support a conviction for conspiracy with intent to

distribute. He argues that at most the evidence showed his presence at the

scene of a drug delivery. 

The standard of review on a claim of insufficient evidence is

stringent. We review the evidence in the light most favorable to the

jury's verdict. United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.

1996). And, we give the verdict the benefit of all reasonable inferences

that might be drawn from the evidence. United States v. Gaines, 969 F.2d

692, 696 (8th Cir. 1992). We will overturn the jury's verdict only if no

reasonable jury could have concluded that the government proved the

elements of the offense beyond a reasonable doubt. Logan, 49 F.3d at 359.

In order to prove the existence of a conspiracy, the government must

show that at least two persons entered an agreement and the objective of

the agreement was a violation of law. United States v. Scott, 91 F.3d

1058, 1061 (8th Cir. 1996). Wilson claims here that there was insufficient

evidence that he agreed to possess or distribute cocaine base to convict

him of conspiracy.

It is true that the evidence of Wilson's intent to join a conspiracy

was circumstantial. However, it is established that the agreement

necessary for a criminal conspiracy may be proved by circumstantial

evidence and inferences to be drawn from that evidence. Jenkins, 78 F.3d

at 1287. In many conspiracy cases
 Wilson raised the claim that he was wrongly sentenced for

2

conspiracy to distribute cocaine base in a supplemental brief filed

after argument. We granted leave to file the brief and here

consider the argument on its merits.

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there is no confession by the defendant or other direct proof that he

agreed to the illegal act. However, the jury is free to consider all the

evidence - direct and indirect - presented of the defendant's statements

and actions. Id. The jury is also free to draw reasonable inferences from

the evidence presented about what the defendant's state of mind was when

he did or said the things presented in the evidence. Id.

In this case it may be possible that the jury could have believed

Wilson's story and could have acquitted him of conspiracy. But that is not

the same as saying that the jury's verdict of guilty cannot stand. There

is more than enough evidence in the record to support the jury's conclusion

- implicit in its verdict -that Wilson was a knowing participant in the

events in question and not merely an unfortunate innocent. Wilson provided

the cash necessary to purchase Deatsch-Wright's plane ticket and

accompanied McGee to the airport to purchase that ticket. The ticket was

for travel the very next day. Wilson was also present at the hotel when

Deatsch-Wright arrived to deliver the drugs. Deatsch-Wright handed the

suitcase containing the cocaine to Wilson. When confronted by the police

at the hotel, Wilson attempted to flee. 

This evidence is sufficient to establish Wilson's knowing and

intentional participation in the conspiracy. Accordingly, Wilson's

conviction was not an error of law.

Sentencing for Cocaine Base.

In his third issue on appeal, Wilson contends that it was error for 2

the district court to sentence him under the enhanced statutory minimum for

cocaine base and the enhanced sentencing guidelines for crack cocaine

because there was insufficient
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evidence to permit the court to conclude that the form of cocaine involved

here was cocaine base or crack. We reject this claim.

Although for scientific purposes cocaine and cocaine base are

considered the same substance, under the Federal Sentencing Guidelines

cocaine base is defined as "crack cocaine" and greater punishment applies

to cocaine base than to cocaine. As we have previously held, whatever the

merits of the argument that such enhanced penalties are unsound as a matter

of policy, we are not at liberty to judicially revise the Sentencing

Guidelines and the enhanced penalties for cocaine base are not

unconstitutional. United States v. Clary, 34 F.3d 709, 712 (8th Cir. 1994),

cert. denied, 115 S. Ct. 1172 (1995).

The government's forensic chemist testified that the substance here

was "cocaine base" and that conclusion was not contradicted by any other

evidence. Thus, there unquestionably was sufficient record evidence to

support the court's sentence as well as the jury's verdict. Gibson v.

Bowersox, 78 F.3d 372, 373-74 (8th Cir.), cert. denied, 117 S. Ct. 158

(1996); Dobynes v. United States, 991 F.2d 801 (8th Cir. 1993). It is

irrelevant that the chemist did not specifically say "this substance is

cocaine base which is the same as crack" or words to that effect and Wilson

has cited no authority for the proposition that the magic word "crack" must

always be used instead of the term cocaine base. Accordingly, we deny

Wilson's claim that his sentence was in error.

FREDERICK McGEE

McGee raises three issues on appeal: (1) the grand jury indictment

was defective and McGee's motion for acquittal should have been granted

because Deatsch-Wright later admitted that her story was false in some

particulars; (2) co-defendant Wilson's counsel made statements in his

closing argument which created an irreconcilable conflict between the

defendants and required severance; and (3) the evidence was insufficient

to convict. We
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find no merit in any of these arguments and affirm the judgment entered by

the district court on the jury's verdict.

Motion for Acquittal.

The female drug courier eventually identified as Deatsch-Wright

originally told investigating officers that her name was Kirsten Mactas and

that she was delivering the drugs to St. Louis for a man named "Big John."

She also claimed that she was a prostitute and exotic dancer when she was,

in fact, married and operated a tax preparation service. It was on this

basis that the officers arranged for the controlled delivery, Wilson and

McGee were arrested, and indictments were obtained. It was not until

shortly before trial that the police learned Deatsch-Wright's real identity

and that the man she was carrying the drugs for was actually known as

"Bird."

McGee contends that because Deatsch-Wright's earlier statements were

shown by her later statement to be unreliable in some respects, all the

information given by Deatsch-Wright was unsound and the indictment was not

based on probable cause. We find this argument singularly unpersuasive.

It is true that Ms. Deatsch-Wright did not originally tell the whole

truth. For instance, she lied about her true name. However, many of the

details about how she came to carry the drugs from Phoenix to St. Louis

were corroborated by the investigating officers before McGee and Wilson

were arrested. In particular, Deatsch-Wright's statement was correct as

to the name and appearance of the person to whom she was to deliver the

drugs and matched closely the officers' own observation of McGee's

appearance. 

We find nothing in Ms. Deatsch-Wright's statement so inherently

unreliable that it was unreasonable for the investigating officers or the

grand jury to rely upon it in
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arresting and charging the defendants. The decision on granting a motion

for acquittal is within the sound discretion of the trial court and the

court clearly acted within that discretion here. United States v. Hunter,

95 F.3d 14, 16 (8th Cir. 1996); United States v. French, 88 F.3d 686, 688

(8th Cir. 1996).

Severance.

In closing argument, counsel for Wilson made the following statement:

Mrs. Wright was down in Phoenix with Bird and Boom and a

girlfriend talking about Fred. At the airport, Fred signs the

paperwork, and signs it Frederick Lakes. At the Hampton Inn,

they are waiting for Fred. Fred shows up. Fred runs, Fred

hops in the van, races the engine, spins the tires, takes off,

runs over a cop. Fred did that. They get Fred's fingerprints,

they find a lot of pieces of paper, the various evidence that

you have seen, got Fred's name on it. Fred, Fred, Fred, Fred.

Fingerprint, money order, clothes, but you don't hear about

Barry.

Counsel for McGee did not object during the closing argument but moved for

a new trial in part based on the argument that McGee was prejudiced by his

joint trial with Wilson. The trial court overruled the motion for new

trial.

McGee now contends that the statement of Wilson's counsel in closing

argument is evidence of an irreconcilable conflict between the defendants

which required that the defendants be tried separately to avoid undue

prejudice. 

In every case of multiple criminal defendants there is the

possibility - even the likelihood - that at some point the interests of the

individual defendants will diverge. There is also the possibility that the

jury may be prejudiced in its consideration of the charges against one

defendant by evidence bearing on the actions of another defendant.

However, the mere
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possibility of inconsistent interests or spillover evidence is not enough

to require overturning verdicts reached in a joint trial. 

The issue of whether to sever multiple defendants is assigned in the

first instance to the discretion of the trial court. United States v.

Smith, 578 F.2d 1227, 1235 (8th Cir. 1978). The decision of the trial

court will only be overturned for abuse of discretion. Id.

Here, we find no abuse of discretion. First, we do not agree that

the cited statement by Wilson's counsel in closing argument shows an

irreconcilable conflict. Second, even if there was such a conflict,

according to McGee it came to light only in the closing arguments when the

jurors were already well familiar with the facts against the individual

defendants. Moreover, by that time considerable judicial resources had

already been expended in the joint trial. To reverse on such speculative

grounds here would waste judicial resources and would essentially give

defendants such as McGee the option of waiting to see how the joint trial

goes before raising the conflict issue and requesting a separate trial. 

We believe the trial court's decision to overrule McGee's belated

request for severance was correct and clearly not an abuse of discretion.

Sufficiency of the Evidence.

Finally, McGee contends that the evidence against him was

insufficient as a matter of law to support a conviction for conspiracy to

possess crack cocaine with intent to distribute. McGee's argument that

there was insufficient evidence of an agreement parallels that of codefendant Wilson and we reject it on the same basis. If anything, the

specific evidence tying McGee to the drug conspiracy was stronger: it was

McGee who was alleged to have known the cocaine distributor in Phoenix; it

was McGee whose name and physical description were given by the drug

courier; and
 McGee filed a motion to join the argument raised by Wilson in 3

his supplemental brief that there was insufficient evidence to

support the sentence enhancement for cocaine base. We granted the

motion allowing McGee to raise this issue but reject the claim on

its merits for the same reasons noted above for Wilson. 

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it was McGee who fled the hotel and remained at large for some time

thereafter. As we noted with respect to defendant Wilson, the jury might

have believed the defense theory and acquitted. However, the argument that

there was insufficient evidence to convict McGee is clearly without merit.3

For the reasons stated, we affirm the judgments of conviction entered

against Barry Wilson and Frederick McGee.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.